Dwight Christopher Moore, of Sumter; John D. Delgado and
Kathrine H. Hudgins, both of Columbia, for appellant.

John E. James, III and George C. James, Jr., both of
Sumter; for respondent.

ANDERSON, J.: Esau Heyward brought a civil
action against Samuel Christmas, a South Carolina Highway Patrol trooper, alleging
causes of action for negligence, assault and battery, and violation of 42 U.S.C.
§ 1983 by using excessive force in arresting Heyward. The circuit court granted
Christmas a directed verdict. Heyward appeals, arguing that (1) the circuit
court erred in granting Christmas a directed verdict; and (2) the circuit court
erred in finding Christmas was entitled to qualified immunity. We reverse and
remand.

FACTS/PROCEDURAL BACKGROUND

On February 16, 1996, Heyward worked until 5:00 p.m., changed clothes,
and then went to a bar called Scotty’s Shop in Pinewood, South Carolina. Heyward
drank a few beers and then asked Ronald Brunson to give him a ride home around
8:30 to 9:00 p.m. Brunson left Scotty’s with Heyward, and sometime during the
drive, shots were exchanged between Brunson and a Pinewood police officer.
A high-speed chase ensued, and Christmas and Trooper Raffield, another highway
patrol trooper, joined the chase. Brunson eventually stopped the car and surrendered
to the police. Heyward remained in the car. With his gun drawn, Christmas
instructed Heyward to get out of the car and raise his hands. Heyward did not
comply. With his gun still drawn, Christmas went to the driver’s side of the
vehicle while the other two officers approached Heyward from the passenger side.
From the driver’s side door, Christmas reached over, grabbed Heyward, and dragged
him from the car. As he was pulling Heyward from the vehicle, Christmas’ drawn
gun discharged and Heyward was shot in the right leg. The officers did not
find a gun in Heyward’s hands.

Heyward filed the underlying civil action against Christmas, alleging causes
of action for negligence, assault and battery, and using excessive force in
arresting Heyward in violation of 42 U.S.C. § 1983. Christmas moved for summary
judgment on the negligence claim, and the circuit court granted it. Prior to
trial, Heyward agreed to dismiss the assault and battery claim. The only issue
to go to trial was whether Christmas had used excessive force in arresting Heyward
in violation of § 1983.

The first witness for Heyward was Christmas. Christmas admitted
the sirens from the three police cars would have made any audible instructions
to Heyward difficult to hear. Christmas testified that Heyward’s empty hands
came up when Christmas grabbed for him. Christmas stated that Heyward did not
resist, but his weight of 120 pounds caused Christmas to stumble while pulling
Heyward out of the car. Christmas was wearing gloves at the time, and when
Heyward’s weight shifted, Christmas maintained that he regripped the gun and
the gun discharged. Christmas kept his gun drawn because his brand new holster
had not been broken in, which made the holster stick and difficult to pull the
gun out. Christmas acknowledged the normal procedure was for the officer to
stay in a protective position while ordering occupants of a car to exit one
at a time. Christmas affirmed that he did not intentionally shoot Heyward.

Heyward called Rick Johnson as an expert in the field of law enforcement.
Johnson regarded Christmas’ actions as unreasonable. Johnson contended that
Christmas placed himself in jeopardy by approaching the vehicle immediately
upon the stop before taking time to assess the situation. Johnson opined that
Christmas placed the other officers’ lives in jeopardy by approaching and entering
the vehicle with his weapon drawn and by pulling Heyward across to the driver’s
seat with one hand when the other officers were standing outside the passenger
door. According to Johnson, the more reasonable approach would have been to
get in a protected position and use the police car’s public announcement system
to give verbal commands to the occupant of the car.

Heyward testified at trial regarding the shooting. According to Heyward,
he paid Brunson five dollars to drive him home from the bar. As the two began
traveling away from the bar, a police car pulled in behind them. Brunson began
shooting at the police car, stating that the police were “messing with him.”
Heyward asked Brunson to let him out of the vehicle, but Brunson continued to
drive. When the car eventually stopped, Heyward asserted there was a lot of
noise coming from the police sirens. Heyward claimed that he sat with his hands
in his lap, still buckled in his seatbelt, after the car stopped because he
panicked. Heyward heard an officer yell for him to “hold it,” and to hold his
hands up. Heyward professed he cooperated by putting his hands up and then
recalled being pulled out of the driver’s side of the car. The next thing he
heard was the gun discharging. Heyward said that he never had the chance to
unlatch his seatbelt prior to being hauled from the car.

After Heyward’s presentation of evidence, Christmas moved for a directed verdict.
The circuit court reserved the ruling until all the evidence had been presented.

Terry Proctor testified that he was on duty at the sheriff’s office and was
patrolling the road on the evening of the shooting when he heard the radio call
around midnight that shots had been fired upon a Pinewood police officer in
pursuit of a car.

Captain David E. Florence attested that he was on duty at
the Sumter County Sheriff’s Office when he heard the radio call regarding the
shots fired on the Pinewood police officer. Florence went to the area to try
to intercept the suspect vehicle. Florence pulled his vehicle in front of the
suspect vehicle and forced Brunson to stop. Florence established that he and
several other officers yelled at the occupants to put their hands in the air
and exit the car. Although Brunson, the driver, exited the vehicle, the passenger
did not show his hands or comply with any commands. Florence approached the
passenger side of the car, and Lieutenant Bradford opened the passenger door
to try to get Heyward out of the car. At that moment, Christmas went inside
the car and grabbed Heyward from the driver’s side.

Lieutenant Anthony Bradford asserted that after the vehicle
was stopped, he walked over to the passenger side.

Christmas averred that when he approached the vehicle, the
driver’s side door was left open from the driver’s exit. He believed he had
a better view of inside the car than anyone else and could see the suspect,
Heyward, in the car.

Relying on Graham v. Connor, 490 U.S. 386 (1989),
and Roy v. Inhabitants of City of Lewiston, 42 F.3d 691 (1st
Cir. 1994), the circuit court granted the motion for a directed verdict on the
§ 1983 action, finding no Fourth Amendment violation based on the objective
reasonableness standard and on qualified immunity. The court found the gun
discharged accidentally, and thus the court would not consider the gun at all.
The court based its decision on whether the actual seizure was unreasonable.
The court found that it was not unreasonable under the circumstances for Christmas
to pull Heyward out of the car by dragging him across the driver’s seat. The
circuit court held that it would not consider Christmas’ deviation from his
training in the directed verdict motion. Heyward appeals.

STANDARD OF REVIEW

When reviewing an order granting a directed verdict,
the appellate court views the evidence and all reasonable inferences from the
evidence in a light most favorable to the party against whom the directed verdict
was granted. Carson v. Adgar, 326 S.C. 212, 216, 486 S.E.2d 3, 5 (1997);
Adams v. G.J. Creel and Sons, Inc., 320 S.C. 274, 277, 465 S.E.2d 84,
85 (1995). If the evidence is susceptible of more than one reasonable inference,
a jury issue is created and “the court may not grant a directed verdict.” Hunley
v. Gibson, 313 S.C. 350, 351, 437 S.E.2d 554, 555 (Ct. App. 1993).

ISSUES

I.

Did the circuit court err in granting a directed
verdict to Christmas on the ground that his conduct was objectively reasonable?

II.

Did the circuit court err in granting a directed verdict on
the ground that Christmas was entitled to qualified immunity?

LAW/ANALYSIS

I. Objectively Reasonable Standard

Heyward first argues the circuit court erred in granting
a directed verdict based on the finding that Christmas’ actions were “objectively
reasonable.” We agree.

The Fourth Amendment to the United States Constitution protects
citizens from unreasonable searches and seizures. U.S. Const. amend. IV. Congress
enacted 42 U.S.C. § 1983 to allow citizens a private cause of action against
state actors who deprive them of a constitutional right. Section 1983 provides:

[Anyone] who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress. . . .

42 U.S.C. § 1983 (1996).

Heyward argues he was entitled to redress under
§ 1983 because Christmas violated his Fourth Amendment rights by using unreasonable
force in arresting him. “Because the Fourth Amendment provides an explicit
textual source of constitutional protection against [excessive force], that
Amendment, not the more generalized notion of ‘substantive due process,’ must
be the guide for analyzing these claims.” Graham v. Connor, 490 U.S.
386, 395 (1989). Thus, a claim that a police officer has used excessive force
during a seizure of a person must be evaluated under the Fourth Amendment’s
objective reasonableness standard. Graham, 490 U.S. at 388; Threlkeld
v. White Castle Systems, Inc., 201 F.Supp.2d 834, 840 (N.D.Ill. 2002).
“Determining whether the force used to effect a particular seizure is ‘reasonable’
under the Fourth Amendment requires careful balancing of “‘the nature and quality
of the intrusion on the individual’s Fourth Amendment interests’” against the
countervailing governmental interests at stake.” Graham, 490 U.S. at
396; accordJackson v. City of Bremerton, 268 F.3d 646, 651 (9th
Cir. 2001) (quoting Graham, 490 U.S. at 396). Although the Fourth Amendment
recognizes that police have the right to use some force in making an arrest,
courts must look to the totality of the circumstances and determine whether
the use of force was “reasonable” from the perspective of a reasonable officer
in the same situation. Graham, 490 U.S. at 396; Jensen v. City of
Oxnard, 145 F.3d 1078, 1086 (9th Cir. 1998); Wicker v. City
of Galveston, 944 F.Supp. 553, 558 (S.D.Tex. 1996). Factors to consider
in determining reasonableness are “the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.” Graham,
490 U.S. at 396.

[T]he question is whether the officers’ actions are “objectively
reasonable” in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. . . . An officer’s evil intentions
will not make a Fourth Amendment violation out of an objectively reasonable
use of force; nor will an officer’s good intentions make an objectively unreasonable
use of force constitutional.

Because the intent of the officer is irrelevant
in the overall analysis of whether the officer’s actions were “objectively reasonable,”
whether a gun discharges accidentally is of no consequence. A court must instead
determine whether the use of the gun was objectively reasonable in light of
the surrounding circumstances. SeeGraham, 490 U.S. at 396 (court
must consider whether police officer’s use of force was reasonable under the
circumstances); Brower v. County of Inyo, 489 U.S. 593, 598-99 (1989)
(it is not practicable to conduct an inquiry into subjective intent; it is enough
for a seizure that “a person be stopped by the very instrumentality set in motion
or put in place in order to achieve that result”).

The circuit court in the underlying case relied
heavily upon Roy v. Inhabitants of City of Lewiston, 42 F.3d 691 (1st
Cir. 1994). In Roy, two police officers watched as a third officer attempted
to serve the intoxicated Roy with a summons outside his home. Roy refused the
summons, became angry, entered his home, and returned outside with two steak
knives, which he swung about while advancing upon the officers. After unsuccessfully
attempting to get Roy to drop the knives, Roy lunged at an officer who shot
Roy twice. The First Circuit Court of Appeals upheld the district court’s grant
of summary judgment to the officer, finding that “in our view a jury could not
find that his conduct was so deficient that no reasonable officer could have
made the same choice as [the officer] – in circumstances that were assuredly
‘tense, uncertain, and rapidly evolving. . . .’” Roy, 42 F.3d at 695
(quoting Graham, 490 U.S. at 397).

Roy is factually distinguishable from the present
case. Whereas Roy was proceeding upon the officers while flailing about two
steak knives, Christmas approached a motionless Heyward with his gun drawn from
the driver’s side of the vehicle. Although Heyward eventually raised his hands,
Christmas continued to point his weapon at Heyward. Despite the fact that other
officers were attempting to remove Heyward from the passenger side of the car,
Christmas grabbed Heyward, who was still wearing a seatbelt, with one hand and
lugged him across the seat of the car while still pointing his firearm with
the other hand. Christmas, as a result, was also pointing the firearm at the
other officers.

Applying the Graham factors to the present case,
the original crime of shooting at a police officer was serious and the officers
were not initially sure which suspect in the car was the shooter. However,
Heyward posed no immediate threat to the police officers when he was removed
from the vehicle because he complied with the officers’ requests to make his
hands visible just prior to Christmas’ seizure of him. Moreover, he was not
actively resisting arrest or trying to flee.

Further, the circuit court erred by refusing to consider
the other circumstances in determining whether Christmas’ actions were objectively
reasonable. The circuit court specifically refused to consider the use of the
weapon in effectuating the seizure of Heyward because it found the resulting
shot accidental. In addition, it does not appear the circuit court considered
the other officers within the line of fire or Heyward’s act of surrender by
putting his hands up prior to Christmas’ actions. An expert testified that
Christmas’ actions were not reasonable under the circumstances. Viewing the
totality of the circumstances, there was some evidence that Christmas’ actions
could be considered objectively unreasonable. Thus, reviewing the evidence
in this case in the light most favorable to Heyward, we find the evidence was
capable of more than one interpretation and the circuit court erred in granting
a directed verdict.

II. QUALIFIED
IMMUNITY

Heyward argues the circuit court erred in directing a verdict
for Christmas on the grounds that he was entitled to qualified immunity. We
agree.

While § 1983 provides individuals with a method of seeking
monetary compensation against state actors who deprive them of a constitutional
right, state actors are given some protection. Government officials “performing
discretionary functions generally are granted a qualified immunity and are ‘shielded
from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” Wilson v. Layne, 526 U.S. 603, 609 (1999) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Todd v.
Smith, 305 S.C. 227, 238, 407 S.E.2d 644, 650 (1991) (quoting Harlow).
“[T]he first inquiry must be whether a constitutional right would have been
violated on the facts alleged; second, assuming the violation is established,
the question whether the right was clearly established must be considered on
a more specific level. . . .” Saucier v. Katz, 533 U.S. 194, 200 (2001).
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Id. at 202 (citing Wilson,
526 U.S. at 615).

The Fourth Circuit Court of Appeals has summarized this
test as follows:

Ruling on a defense of qualified immunity therefore requires
(1) identification of the specific right allegedly violated; (2) determining
whether at the time of the alleged violation the right was clearly established;
and (3) if so, then determining whether a reasonable person in the officer's
position would have known that doing what he did would violate that right. The
first two of these present pure questions of law for the courts. Harlow,
457 U.S. at 818, 102 S.Ct. at 2738. The third, which involves application of
Harlow’s objective test to the particular conduct at issue, may require
factual determinations respecting disputed aspects of that conduct. Anderson
v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 3042 n. 6 (1987).

Pritchett v. Alford, 973 F.2d 307, 312 (4th
Cir. 1992).

At the end of the trial, the circuit court announced an
inclination to grant Christmas a directed verdict based on “both the objective
reasonable standards on the Fourth Amendment test and qualified immunity.”
However, throughout the directed verdict arguments with counsel, the circuit
court only discussed the objective reasonable standard. The circuit court did
not discuss why, based on the facts presented, it found Christmas was entitled
to qualified immunity. It does not appear from the record that the circuit
court performed a qualified immunity evaluation.

Nevertheless, it appears that Heyward presented evidence
that would create a question of fact regarding qualified immunity. Heyward
was entitled under the Fourth Amendment to be free from seizures effectuated
by the use of excessive force. This right was clearly established at the time
Christmas approached the motionless Heyward with his gun drawn. Finally, some
evidence was presented that a reasonable officer would not have approached Heyward
in the manner that Christmas did. The expert testimony at trial at least created
a question of fact regarding the reasonableness of Christmas’ actions. Because
the circuit court failed to make a reasoned evaluation of whether Christmas
was entitled to qualified immunity and Heyward presented evidence which could
lead to more than one inference regarding Christmas’ entitlement to qualified
immunity, the circuit court erred in granting Christmas a directed verdict based
on qualified immunity.

CONCLUSION

Based on the foregoing, the circuit court’s grant of a directed
verdict to Christmas is